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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, December 27, 2013

SDNY upholds NSA phone surveillance program

A federal judge in Manhattan ruled on December 27 that the National Security Agency's broad surveillance practices -- sweeping up metadata from millions of phone calls -- does not violate the Fourth Amendment. The decision stands at odds from a ruling from a federal judge in Washington D.C.

The case is A.C.L.U. v. Clapper. The judge is William Pauley. This case arises from the whistleblowing of Edward Snowden, an NSA contractor who turned over agency records to a London newspaper and blew the lid on what has to be the largest surveillance program in American history. Judge Pauley notes that, under the program, the NSA since 2006 has collected telephone metadata -- phone numbers and calling patterns but not content [or so they tell us] -- on just about every phone call made in the United States, including your phone calls and mine and the guy next door and your grandmother's calls as well. The program took root after the September 11 attacks, and the government sought to monitor terrorist activity, which cannot take place without monitoring their phone calls and other communications. (The opening paragraphs in Judge Pauley's ruling make reference to 9/11). But since not everyone in America is a terrorist, this program's wide sweep includes a lot of innocent people. Is this legal?

A few weeks ago, granting a preliminary injunction against the NSA, Judge Leon of the District of Columbia District Court held that this surveillance constitutes a "search" under the Fourth Amendment and that it does not pass the "reasonableness" test. So Judge Pauley has to decide if he wants to follow Judge Leon's reasoning. He does not. Judge Pauley sustains the NSA program under the Constitution.

Judges Leon and Pauley have to deal with a Supreme Court ruling from 1979, Smith v. Maryland, where the police installed a "pen register" (or a phone tap) which recorded the numbers dialed from Smith's home. In summarizing Smith, Judge Pauley stated that "individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provide to third parties." While Smith is the most relevant Supreme Court case in assessing the constitutionality of the NSA program, Judge Leon said that it does not help us resolve surveillance problems in 2013 because tapping one phone number is not like recording telephonic metadata of millions of Americans, who use their cell phones in ways that no one could have anticipated in 1979. Our relationship with cell phones today is such that, in Judge Leon's view, we do have a reasonable expectation of privacy in the calls we make from them. Judge Leon wrote:

When do present-day circumstances – the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government is now.

In further brushing the Smith precedent aside, Judge Leon noted that “the nature and quality of the information contained in people’s telephony is much greater.” In 1979, 72 million U.S. homes had telephones. In December 2012, there were 326 million mobile subscriber connections in the United States. Of course, these are not just cell phones but cameras, texting devices, music players and computers. “The ubiquity of phones had dramatically altered the quantity of information that is now available and, more importantly, what that information call tell the Government about people’s lives. ... Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.” Calls and communications are made today that could not have been made in 1979. The metadata from each person’s phone “reflects a wealth of detail about her familial political, professional, religious, and sexual associations” that could not have been gleaned from a data collection in 1979. Judge Leon essentially found that the Smith precedent is outdated for purposes of determining whether the public has a reasonable expectation of privacy in their telephonic metadata. While Smith may allow the police to trace phone calls from a single phone line, it cannot apply in the context of modern telecommunications when the government is trying to collect metadata on the scale of current NSA programs.

Judge Pauley rejects this reasoning. Smith remains good law, he writes, and although several Supreme Court justices in a recent GPS monitoring case raised questions about how the Fourth Amendment applies to modern technological advances, we still apply the reasoning in Supreme Court cases until the Court tells us not to. While the government is now collecting "breathtaking" amounts of data, that does not mean this practice implicates the Fourth Amendment. While the NSA's surveillance practices are like the 1979 "pen register" on steroids, Smith's central holding still applies. That brings us to one of Judge Pauley's central conclusions: "the business records created by Verizon are not 'Plaintiff's call records.' These records are created and maintained by the telecommunications provider." The information does not belong to you; it belongs to the phone company. Under that analysis, the caller does not have a legitimate expectation of privacy in the telephonic metadata, and the NSA program is constitutional. Now that federal judges have applied Smith differently in the NSA surveillance cases, the Supreme Court will have to re-examine Smith and decide again what the Fourth Amendment means in this context.